Constitution Check: Can the government require protesters to justify their intentions?

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Lyle Denniston looks at a new law that might end the ability of the Westboro Baptist Church to protest at military funerals.

The statement at issue:

“The new federal statute [restricting protests at military funerals] forces protesters who violate a term of the law to prove that they did not intend to disturb the peace, shifting the burden of proof from the government. The provision is so vague that it lets police choose whom they consider troublemakers among protesters.”

– Editorial, titled “Free Speech at Military Funerals,” New York Times, published August 13.

We checked the Constitution, and…

It is far from obvious that the government can limit the use of First Amendment rights – and the Supreme Court has ruled that those rights include staging protests at military funerals – by requiring demonstrators to prove that they had a non-disruptive motive. That comes very close, it seems, to regulating speech based upon the content of the message because content reflects the intention of the speaker.

About Constitution Check

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Protest marches at military funerals, still being staged across the country by members of the Westboro Baptist Church of Topeka, Kansas, are not known for benign motives. When protestors actively seek to inflict verbal pain by the extreme nature of their anti-soldier language and posters, they are not likely to make many friends and perhaps may not influence very many – if any – other people. But the Supreme Court has said explicitly that they have a right to be just that obnoxious, so long as they don’t engage in actual physical violence or genuine disruption and keep their distance.

On August 6, President Obama signed into law a new “Honoring America’s Veterans Act of 2012.” In a section of that law titled “Prohibition on Disruptions of Funerals of Members or Former Members of the Armed Forces,” Congress has made it a federal crime to stage any protest two hours before such a funeral and two hours afterward, if that takes place within a buffer zone that starts 300 feet away from the point where the boundary of the funeral site intersects with a road or pathway, and goes out to 500 feet beyond the funeral site, “with the intent of disturbing the peace or good order of such funeral.”

That ban may even extend further than this 200-foot zone, because there is a separate section that insulates the home of any of the soldier’s family that is near to the funeral site – even, presumably, if it is further from the site than 500 feet.

If someone is convicted of violated that buffer zone, with that illegal intent, the family of the soldier can sue them for civil damages, and the protester in that separate case cannot deny that they had broken the law in the protest – strong evidence supporting a damages verdict.

What bothered The New York Times’ editorial writer the most, though, was another provision of the new law. In the section allowing any family member (or the U.S. Attorney General) to seek damages for such a protest, it says that the courts will “presume” that a funeral protester actually intended to “disturb the peace or good order of such funeral” by their actions, unless the protestor can come forward with proof that they had no such intention. And that will be harder to prove if the protester actually sought publicity or public attention for the demonstration; that will be taken as proof of an intention to disturb the peace.

Because the “presumption” language is placed only in the section dealing with civil damages, and thus does not seem to apply to criminal prosecutions under the law, there apparently would be no such “presumption” of illegal intent at a criminal trial of a protest. And that is understandable, since, in criminal cases, it is always the task of the prosecution to prove criminal intent or indifference that amounts to intent.

Still, it is difficult, on the face of all of these new provisions, to see what kind of protest in the style of the Westboro Baptist Church could be staged without breaking the new law, either criminally or civilly.

What courts will be faced with deciding, when the Westboro congregation files its inevitable lawsuit against the new law or when one or more of their members faces criminal prosecution or a civil lawsuit under the new provisions, is whether the alleged violators have any real defense. At best, making a defense would seem to be extremely difficult.

In a criminal trial, how do they prove they did not intend to “disturb” the funeral? Isn’t that the whole idea? And, if it is, is that idea protected by the First Amendment? Would the Supreme Court ultimately have to do a kind of constitutional balancing between speech rights and privacy rights, the kind that it did not do in the Westboro Church’s case last year? Does “disturb” mean actual disruption, when the only noise the protesters make is signing and praying out loud, while they silently display hateful signs?

In a civil trial, with the presumption – subject to challenge – of an intent to violate the law, how does a protester offset the notion that he or she meant to send a message? How do members of an organization like the Westboro church prove that their motives were actually benign? Is a hateful message always proof of an evil motive?

Those are not easily answered questions.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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